Roberts, Chief Umpire SCOTUS
D | Monday, September 12, 2005

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I haven't yet made up my mind what I think about the use of the baseball analogy to describe the roll of a judge (read his full text here). This is an excerpt:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Damn straight, Mr. Chief Justice Nominee. Also here:

And I will remember that it's my job to call balls and strikes and not to pitch or bat.

Personally, I like the guy so far. Granted he hasn't opened his mouth to say 10 words til today, and the next few days may tell a different story, but so far I think he is a steadfast public servant who seems to me like a stand up guy.

My concern is more about the role of a judge compared to the role of an umpire. Now lets all take a moment to realize that I am not the King of Analogies. True, people in glass analogy houses shouldn't throw stones, but here I go anyway.

As much as we might not like it, often times it is up a judge "write the law." Yes, like an umpire a judge must weigh each case against a standard and see if the outcome is proper, but often times the judge defines what constitues a "strike" or defines how far the first base is away from the plate. Umpires opperate within a permanently established set of parameters. At no point can an umpire say, "I think it is unconstitutional for the foul pole to be 315 yards away. We should shorten it to 300 yards." As I understand the checks and balances system, one of the roles of a judge (at least a SC judge) is to tell the legislature when they have passed a law which is unconstitutional. I agree that nine times out of ten a judge should just call balls and strikes, but every now and then they come to deciding a case where they have to say that the previously accepted definiton of a strike is no longer valid. On an even simpler note, judges are constantly fine tuning case law with tests and standards to help clarify the application of the law. Why else do law students spend hours reading case after case as opposed to simply reading the applicable statutues? Surely those instances are judges "making law."

I guess my ultimate point is two fold - 1. judicial activism (much like "liberal" or "Muslim") isn't always a dirty word. Let's calm down and realize that what we mean to say is "extremist judicial activism" or "extreme liberalism" or "Muslim extremist." That point leads nicely into my second point - 2. From time to time, it is indeed part of a judge's job to "write the law" or at least say to a governing body "this is a bad law, go try again." The umpire analogy only works to a point and anyone who says or tries to convince us otherwise is not being entirely truthful.

D | 9/12/2005 05:21:00 PM |   Post your comment

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Comments:

This is an interesting analogy, so let's play with it a bit and see where it goes (that's pretty much what we do in law school, after all). One caveat before I start though: I know next to nothing about baseball and its rules. I think my analysis still holds, but I welcome any comments and corrections.

I think the umpire analogy works better if you think of the pitches as laws which may be constitutional (strikes) or unconstitutional (balls). And just as different umpires may have different ideas of how large the strike zone is, different justices have different ideas of what is and is not constitutional.

But what happens if we extend the analogy beyond this simple interpretation? After all, umpires do far more than merely call balls and strikes - they officiate the game based on all the rules of the game.

Much like the U.S. Constitution, the Official Rules of Baseball does not contain explanations for every situation. Therefore, umpires have some discretion in making decisions during a game. (According to the same website, there are manuals that contain guidelines and interpretations, but it is my understanding that these references are persuasive but not controlling. I would equate these guidelines and interpretations to secondary sources, lower court decisions, or legislative notes.)

The MLB Rules Committee (or whatever body codifies the rules of the game) isn't on the field to make a call if something new comes up. Though this doesn't happen very often in baseball, I would imagine it has happened in the past. And unless/until the Rules Committee can convene to create a rule for a new situation, the umpire has the final word; in short, the umpire makes the rule. It will stand for at least as long as that game. Barring intervention from the Rules Committee, the new rule will likely be used by that umpire again if a similar situation comes up in the future, and may even be adopted by other umpires.

This is what judges/justices are charged to do: interpret and apply the rules when they can, and fashion a new rule (based on the Constitution/constitutional principles) if necessary. If Congress doesn't like the new rule, it is generally free to create a new law to clarify the point of law in dispute. So where is the problem?

People have different ideas of how to interpret the rules and when new rules are necessary. Some feel the Constitution has a fixed meaning, based on the ideas and definitions in existence when the Constitution was written, whereas others believe the Constitution is a document whose meaning can change over time. Whichever side one comes down on, it involves making a decision that affects the law. "Strict constructionism" is an active interpretation of the law as surely as is a creation of a new test or principle. Judicial conservatism and judicial activism are simply different sides of the same coin. The main difference is the political connotations that have been attached to the terms. If you like the decision, it's proper judicial conservatism; if you don't like the result, it's judicial activism.
Alex | September 12, 2005 7:16 PM | permalink
 

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Mr. Chief Justice Nominee Roberts is an a-hole.
HM | September 12, 2005 10:42 PM | permalink
 

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HM, way to be articulate about your position, bravo.
Ruvym | September 13, 2005 9:36 AM | permalink
 

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I don't know. Maybe a judge should be a hot-cross-bun or a croissant.
nugatory | September 14, 2005 9:02 PM | permalink
 

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Where is KP when you need him? My joke falls on deaf ears!

You wrote "roll" when you meant "role."

See, I made a play on words. KP would have gotten my joke. Definitely.
nugatory | September 18, 2005 12:26 PM | permalink
 

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